Islamic Law and Human Rights

by

Ayesha Shahid

• LAST REVIEWED: 31 March 2016
• LAST MODIFIED: 31 March 2016
• DOI: 10.1093/obo/9780199796953-0129

Introduction

One of the contemporary challenges faced by Islamic law today is the issue of compatibility between Islamic law and international human rights law. The debates about the compatibility of Islamic law with international human rights are taking on an increased significance in both the Muslim and the non-Muslim worlds. The scholarship addressing the compatibility between the two legal traditions is particularly important in the current political environment of Islamophobia in the West (whether it is the issue of hijab [veil], freedom of religion, serving halal meat in prisons and hospitals in France, Denmark, and Norway, to name a few, or linking Islam with terrorism in the United States, the United Kingdom, and other European countries). Unfortunately, Islam is being presented as inherently violent and incompatible with civility and peaceful coexistence. Contemporary issues of human rights are perceived as a threat to modern concepts of democracy and human dignity. Some Western scholarship persists in believing that Islamists oppose the implementation of human rights and democratization in Muslim countries, while conservative religious circles in Muslim communities suspect human rights as a Western and alien concept. The two legal traditions are not entirely irreconcilable. Since the 1990s, cutting edge scholarship has been produced to address such misconceptions on both sides and to search for a nexus between the two systems. This article introduces researchers to a wide range of scholarship that cuts across a number of themes within the human rights discourse, including women’s rights, child rights, religious freedom, and Muslim state practice. This bibliographical source covers literature that examines relevant theoretical and conceptual issues relating to the nature of international human rights law and Islamic law. The literature covered also examines whether there is a concept of human rights in Islamic law, if there is common ground between the two legal traditions, and if there are any areas of conceptual differences between the two systems. The objective of this bibliographical source is to identify literature that could be useful for developing an in-depth understanding of the concept of human rights in the Islamic legal tradition and to identify possible ways of how human rights can be best realized within the Islamic ethos of Muslim states. It will also be a useful contribution to the ongoing initiative of offering academic courses in Islamic law and human rights by a number of institutions around the world at both undergraduate and postgraduate levels. This online bibliographical source is an indicative input into what academics can use to develop such courses. An interdisciplinary approach has been followed while selecting literature, and works of political scientists, sociologists, and anthropologists as well as legal scholars have been included in the field of Islamic law and human rights. The resources and materials are useful for both English-speaking and non-English-speaking audiences.

General Overviews

A number of works that address the relationship between Islam and human rights have been published since the end of the Cold War. This general overview includes monographs, edited collections on Islamic law and human rights, and a few textbooks that discuss the relationship between Islamic law and human rights. The readings provided in this section examine the profound tension between the competing paradigms of universal human rights and cultural/religious relativism and Islamic law and secularism; for instance, Mayer 2012 contends that contemporary endorsement of international human rights by Muslims is more apparent than real, because all human rights pronouncements by Muslim individuals and groups have been curtailed by qualifications rooted in Sharia. Bielefeldt 1998 also in the same vein echoes the concerns as raised in Mayer 2012 in its earlier editions regarding historical Sharia’s capacity to provide for human rights protections, particularly for women and non-Muslims. Mayer 2012 and Bielefeldt 1998 conclude that application of Sharia law will lead to serious breaches of the protections provided specifically to women and religious minorities by the international human rights framework. An-Na’im 1990 also critiques classical Sharia by using specific examples of violation of religious freedom by Sharia rules and discrimination against women and non-Muslims in the historical legal system. However, unlike Mayer 2012 and Bielefeldt 1998, this monograph realizes the possibility and importance of evolving a human rights tradition from within the Islamic normative system, and calls for an Islamic reformation aimed at overcoming contradictions between international human rights and Sharia rules. This groundbreaking study proposes a methodological approach based on “the evolutionary principle” introduced in the seventies by Mahmoud Muhammad Taha. It also provides a nuanced approach to address the intellectual foundations for a total reinterpretation of the nature and meaning of Islamic public law. Similarly, Baderin 2005 is a significant contribution that focuses on the compatibility of the two systems by looking at the nature, sources, and methods of Islamic law in the context of criminal justice system. It offers a comprehensive and authoritative comparative analysis of the Islamic law principles of “maqaasid-al-Sharia” (overall goal of the Sharia) and “maslahah” (welfare) with the human rights law principle of “margin of appreciation.”

• Abou El Fadl, Khaled. “The Human Rights Commitment in Modern Islam.” In Human Rights and Responsibilities in the World Religions. Edited by Joseph Runzo, Nancy M. Martin, and Arvind Sharma, 301–364. Oxford: Oneworld, 2003.

  This chapter discusses the key tensions between Islamic tradition and universal standards of human rights and suggests how reconciliation can be advanced.

• An-Na’im, Abdullahi A. Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law. New York: Syracuse University Press, 1990.

  A must-read opuscule for those searching for new ways of understanding Sharia. This book is a radical departure from both Islamic conservative fundamentalist and Islamic modernist approaches. What distinguishes this text from other literature in the field is its emphasis on transforming the understanding of various foundations of classical Islamic law rather than suggesting mere law reform. The book provides an alternative to both secular and fundamentalist discourses.

• Baderin, Mashood. International Human Rights and Islamic Law. Oxford: Oxford University Press, 2005.

  DOI: 10.1093/acprof:oso/9780199285402.001.0001

  Important monograph that initiates a dialogue between Islamic law and human rights. It promotes the realization of human rights within the context of application of Islamic criminal and family law in Muslim states, and also covers some aspects of economic and social rights.

• Bielefeldt, Heiner. “Muslim Voices in the Human Rights Debate.” Human Rights Quarterly 17 (1995): 518–617.

  DOI: 10.1353/hrq.1995.0034

  This article engages with a plurality of Muslim positions in the area of human rights. It argues that there is no one binding Islamic position but rather a great variety of “Muslim voices” offering different views about whether and how the idea of human rights and Islamic normative requirements fit together.

• Bielefeldt, Heiner. Die Philosophie der Menschenrechte: Grundlagen eines weltweiten Freiheitsethos. Darmstadt: Wissenschaftliche Buchgesellschaft, 1998.

  This monumental work contains an extensive elaboration of the history and concepts of human rights. The central focus is a normative idea of human dignity, as generally defined in the categorical imperative. The text aims at an intercultural foundation of human rights and describes human rights as an “intercultural overlapping consensus.” In contrast to theories of minimal consensus, the overlapping consensus constitutes the measurement of interculturality itself.

• Elliesie, Hatem, eds. Menschenrechte und Islam/Islam and Human Rights. Jubilee Edition of the German Association of Arabic and Islamic Law. New York: Peter Lang, 2010.

  This trilingual volume is a timely addition to the Islam and human rights debate. It consists of several chapters covering a range of topics that look into the various facets of Islam, human rights, and the practice of human rights in the Islamic world.

• Ellis, Mark S., Anver M. Emon, and Benjamin Glahn, eds. Islamic Law and International Human Rights Law: Searching for Common Ground? Oxford: Oxford University Press, 2012.

  A distinctive contribution by leading experts in Islamic law and international human rights law, this edited collection attempts to deepen our understanding of human rights and Islam, paving the way for a more meaningful debate. Focusing on central areas of controversy, such as freedom of speech and religion, gender equality, and minority rights, the authors examine the contextual nature of how Islamic law and international human rights law are legitimately formed, interpreted, and applied within a community.

• Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. 5th ed. Boulder, CO: Westview, 2012.

  This fifth edition provides an update of the earlier versions of this book by taking into account the impact of changes and developments in the Middle East–North Africa (MENA) region after the Arab Spring on the ongoing contention about Islam and human rights. The author cites the critiques by progressive Muslims, including Islamic feminists, to show that Muslim human rights activists are forceful proponents of universal human rights and denounce appeals to cultural particularisms.

• Rehman, Javaid. International Human Rights Law. Harlow, UK, and New York: Longman/Pearson, 2010.

  This textbook offers a comprehensive and practical examination of the workings of human rights protection and presents a considered legal analysis of such sensitive issues as the rights of minorities, disabled people, indigenous peoples, women, and children. Chapter 11 provides an in-depth discussion on various aspects of the compatibility of Islamic law and human rights. It also includes a critical analysis of Islamic human rights instruments drafted by the Organisation of Islamic Co-operation (OIC) and the League of Arab States.

• Saeed, Abdullah, ed. Islam and Human Rights. Vol. 1, Key Issues in the Debates. Human Rights Law Series. Cheltenham, UK: Elgar, 2012.

  DOI: 10.4337/9781784713966

  This is a prestigious two-volume monumental coverage of seminal articles from an array of interdisciplinary perspectives, encompassing key issues in the debates surrounding Islam and human rights. Volume 1 includes case studies on Yemen, Saudi Arabia, Turkey, Iran, Indonesia, and Malaysia.

• Saeed, Abdullah, ed. Islam and Human Rights. Vol. 2, Contentious Rights and Case Studies. Human Rights Law Series. Cheltenham, UK: Elgar, 2012.

  DOI: 10.4337/9781784713966

  Volume 2 is divided into nine parts. Each part brings together seminal articles on topics ranging from women’s rights in Islam to children’s rights, right to health, right to life, administration of justice, freedom of expression and the right to equality before the law.